Against Judicial Irony

July 15, 2009

Georgetown law professor Louis Michael Seidman has caused a bit of a stir in the blogosphere with a strongly-worded critique of Judge Sotomayor's performance at her confirmation hearings. The thrust of Professor Seidman's argument is that Sotomayor ought to have acknowledged that Supreme Court justices do more than simply mechanically apply settled principles of law to the facts of a case:

Speaking
only for myself (I guess that's obvious), I was completely disgusted by
Judge Sotomayor's testimony today. If she was not perjuring herself,
she is intellectually unqualified to be on the Supreme Court. If she
was perjuring herself, she is morally unqualified. How could someone
who has been on the bench for seventeen years possibly believe that
judging in hard cases involves no more than applying the law to the
facts? First year law students understand within a month that many
areas of the law are open textured and indeterminate—that the legal
material frequently (actually, I would say always) must be supplemented
by contestable presuppositions, empirical assumptions, and moral
judgments. To claim otherwise—to claim that fidelity to uncontested
legal principles dictates results—is to claim that whenever Justices
disagree among themselves, someone is either a fool or acting in bad
faith. What does it say about our legal system that in order to get
confirmed Judge Sotomayor must tell the lies that she told today? That
judges and justices must live these lies throughout their professional
carers?

On the merits of Seidman's argument, I think Orin Kerr had an spot-on discussion of the matter a few months back. It's true that very few cases that make their way far up the appellate ladder are simple enough that it's 100 percent clear which side has the better legal argument. But it's also true that there are very few "50/50" cases, in which the two sides have completely equally compelling legal arguments. In the vast majority of major cases, one side's argument will be somewhat better than the other's--maybe 60/40 or 70/30. To say that there is ambiguity in the law is not to say that there are no objectively right or wrong answers. In the vast majority of cases, there are.

But set aside that point for a moment. Suppose we accept Seidman's (at least somewhat valid) claim that "fidelity to uncontested legal principles" rarely dictates legal results. Does that mean that Judge Sotomayor, and other recent Supreme Court nominees, are, as Seidman puts it, "either na